A written By the operation of the statute, wills are not revocable, unless agreement by writing; and deeds, by reason of the solemnity of their au may be discharged by thentication, are set above the controul of any other acts not of parol evid

ence.

* [90]

equal dignity and force in the law; but it has long been consid ered as settled that agreements, though they cannot be altered or contradicted, may nevertheless be discharged by parol. This was so held by Sir Francis North, Lord Keeper, in Goman v. Salisbury,(d) where it was the single point of the case. In Pitcairn v. Ogbourne,(e) that decision was adverted to, and the propriety of it admitted by Sir John Strange; and again, by the present Chancellor in the late case of Coles v. Trecothic,(ƒ) the doctrine *was distinctly recognised and affirmed. But it should clearly seem, from the analogy of the decisions, that, to effect this discharge of an agreement by parol, a distinct independent verbal agreement must be proved. Nor does it appear, that a partial discharge can be effected in this way. Such evidence, to show that annuity was meant to be made redeemable, has been refused.(g) But where a contract has been so discharged, yet if the abandonment of the contract be made the ground of an action, it has been held that it is not competent to the plaintiff to show, that a contract has existed and been abandoned, without proving the specific contract; and if that contract was not in writing and signed, the statute is in the way.(h)

:

Thus far the attempt has been made, under circumstances greatly discouraging, to render some assistance to the student in his progress through this thorny path of legal learning from which attempt, it is humbly hoped, that the doctrine of ambiguities, latent and patent, has received some elucidation; and that in general, the points respecting the admissibility of parol and extrinsic evidence, have been left in a clearer state than they were found by the writer. Though he has not been able to rear an edifice of consistency and science, it is, perhaps, not too much to say, that he has raised the materials from the quarry, and disposed them in an order more ready to the hand of a better architect. His own purpose has been considerably served by this

(d) 1 Vern. 240. (e) 2 Vez. 375. (f) 9 Vez. jun. 250. (g) By Lord Kenyon in Rosamond v. Lord Melsington. (h) 1 Bos. and Pull, 306, Walker v. Constable.

general introductory view. He will have much less trouble hereafter when he comes to discuss the particular branches of the statute, whereby writing and signing are made essential to the legal operation of a contract, testament, or trust, and in conducting the reader to the principles and spirit of the several adjudications which he will have to review.

1

91

CHAPTER II.

Declarations of Trusts.

29 Car. 2. Cap. 3 Sect. 7, 8, 9.

7. And be it further enacted, that from and after the 24th day of June, 1677, all declarations or creations of trusts, or confidences, of any lands, tenements, or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will and testament, or else they shall be utterly void and of none effect.

8. Provided always, that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect, as the same would have been if this statute had not been made.

9. And be it further enacted, that all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect.

UPON the general principle of law, so much above discussed, whereby the contents and purport of a deed are protected from the encroachments of verbal or extrinsic evidence, an use could never be averred in contradiction to the use expressed in writing. But where a conveyance was made without expressing any use, some distinctions as to the power of creating uses by aver[92]ment, have apparently existed and *prevailed at common law. A Of this doc- conveyance or assurance upon valuable consideration, moving trine before from the party to whom the conveyance was made, must nécessarily have always consolidated with the legal estate that use or equity which, perhaps, in our law has been immemorially contemplated as separable from the mere legal or technical owner

the statute of frauds.

ship.(38) Upon which quality of separability in the use from Of the resulthe legal estate was raised the early doctrine of a resultancy of ting uses. the beneficial interest to the party conveying without valuable consideration, or any accompanying expression declarative of a contrary intention. Though it may be doubted whether an use could be thus construed to result before the statute of quia emptores, for until the law of tenures was altered by that statute, the feoffee would hold of the feoffor; and consequently a consideration would arise out of the tenure, which implied certain obligations and services, sufficient, perhaps, to prevent a consequence arising from a presumption of law against alienations purely gratuitous.(a)

it

If, for a want of consideration moving from the feoffee the use was loosened from the legal estate in the land, the party conveying had a directory power over it; and as he might have fixed in the feoffee by simply expressing such intention in the deed of conveyance without any consideration,(6) so the use might be carried by the feoffor's declaration to a third person without writing or consideration; such use being directed and not raised by the declaration, which was no part of the conveyance; and the conveyance itself being a mere transaction in pais. But there was a great difference in this respect, between a conveyance, which operated by transmuting the possession, and the covenant to stand seized, which had no operation but by the creation of a new use; and as this use was raised by equity, and equity never acts without a consideration, a consideration was always necessary to the transfer of the interest by this conveyance; whereas, in the case of a feoffment or fine, the use arises upon the conveyance itself, and results by a presumption from the want of a consideration, in the absence of any contrary declaration by the feoffor.

(a) Dyer, 146, b. pl. 71. (b) Vide 9 Rep. 10, Dowman's case.

(38) See the 22d question in the dialogue of the Doctor and Student, where the divine does not carry the common law uses up to the fountain of Roman jurisprudence; and the Student seemed to think, that the distinction between the ownership and usufructuary interest or right to the profits, was coeval in our law with the acquisition of property. But read 2 Blackst. Comm. 271. 2 Leon. 14. Lord Raym.

Of the doc

trine since

the statute. *[94]

Presumptive trusts more

easily repelled tnan raised.

It seems, therefore, that, at common law, only the solemn conveyance, by livery or record, could raise the use by its own virtue, and dispense with the deed for declaring it, as the consideration for raising it; and we are to observe, that with regard to the feoffment, as the act of livery was the operative solemnity, and the conveyance was effectual by parol, an additional reason presents itself for the efficacy of a verbal declaration of the use arising upon it: whereas, in cases where a deed was necessary to effectuate the transfer, as in a grant of rent, a deed was likewise required to declare the uses and in the covenant to stand seized, the form of the conveyance implied a deed as well as a consideration, to raise and give birth to the use; the obligatory strength of the instrument being incorporated with the consideration of blood to compose the validity and efficacy of the convey. ance. The virtue and strength of the bargain and sale of lands at common law was derived from the consideration of the contract, and it may be doubted whether, before the statute of enrolments(c) a bargain and sale of lands was not good without writing, if it stood upon a clear valuable consideration.(d)

The statute 29 Car. 2. has, however, silenced many of these nice distinctions at common law, by imposing a general *restriction on parol declarations of trusts; which word trusts' has been judged to comprehend uses.(e)

We have observed, that to raise or create an use, required a stronger act than to repel its resultancy: and since the statute of uses, the same difference seems to have existed in the courts of equity in respect to trusts. The equity, which arises upon a rule of presumption, is always rebuttable by parol evidence.

By the express words of the statute of frauds, all resulting trusts, and trusts arising by operation of law, are left upon their original footing; such constructive trusts, therefore, whenever they spring out of facts, or the equitable relation of parties to each other, may, by virtue of the said exception, be set up by parol evidence; but where the relative obligations or rights of parties are stipulated and adjusted by written instruments, the instruments must still speak for themselves by expression or implication, and no extrinsic collateral evidence ought to be received to

(c)27 Henry 8. c. 16. 2 Inst. 675. (a) Leon. 18. (e)By Lord Holt, Vide Holt's Rep. 733.